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Topic: Native Title compensation in Australia 

Presenter: Will Isdale, PhD candidate, TC Beirne School of Law 

Advisors: Prof Jonathon Fulcher, Justice Andrew Greenwood 

Online link: https://uqz.zoom.us/j/753737019

Time: 9-9:45am Friday, 27 March 2020


In March 2019, the High Court gave its first judgment concerning compensation for a loss of native title rights. My thesis - entitled Compensation for Native Title: similitude or sui generis - argues that the High Court adopted a unique approach, which sets native title apart from other interests in land. I argue that the approach is inconsistent with fundamental principles of compensation, and that there was no reason not to apply conventional approaches. I also critique the Court's lack of guidance on how non-economic (cultural and spiritual) losses should be assessed, and outline some factors that should guide courts in the future. Lastly, my thesis resolves some key issues that weren't considered by the High Court - most importantly, whether losses of native title can trigger the "just terms" requirement of s 51(xxxi) of the Commonwealth Constitution. I argue that it can, and that this has wide-reaching implications.